Tag Archives: terminating employees

Misconduct & Unemployment Benefits

Contributed by Noah A. Frank

Finally!  As of 1/3/2016, Illinois statutorily enhanced employers’ rights to conduct business through enacting statutory misconduct as a basis for terminating an employee and denying unemployment benefits.  Other jurisdictions may follow suit to protect business rights.

Statutory misconduct now includes:

  • Falsification of employment information (application, references, education/work history, SSN) is now terminable misconduct and allows denial of benefits.
  • Failure to maintain reasonably required licenses, registrations, etc.
  • “Insubordination” – refusal to obey reasonable and lawful instructions.
  • Attendance, provided that there is a written policy and employee has received at least one prior written  warning. This is a “two strike” policy.
  • “Grossly negligent” conduct that damages employer property or endangers the employee or coworkers (the Act is silent as to endangering third-parties, such as customers)
  • Drugs & Alcohol – use of, or reporting to work under the influence of any impairing substance (including off-label use of lawful medication).

Of course, there are exceptions and circumstances which may cause the administrative agency to still allow benefits.  These include:

  • Employer delay between discovery of misconduct and termination;
  • Government shutdown delaying issuance of a license;
  • “Significant” time passing between attendance issues, or circumstances beyond the employee’s control;
  • Employer forcing an unscheduled/not on-call employee to report for work after the employee has disclosed he/she is impaired (legally or otherwise);
  • Employee refusal to obey instructions which are unsafe or not legal, or where the employee is not appropriately trained;

While laws are evolving, employers should still follow best practices:

  • Have employment policies/handbooks that are enforceable, understandable, and acknowledged by the employees. This includes attendance, licensure, and acceptable conduct standards policies.
  • Just as employers should have faithfully done before these amendments, documentation is the lynchpin of demonstrating misconduct, including prior warnings.
  • Investigate the misconduct.  Determine in good-faith that the employee is “at fault” (so to speak), and that there are no mitigating exceptions which might allow benefits, or worse, set the company up for a potential discrimination/retaliation claim.
  • Consider non-statutory bases for misconduct termination.  Just because it is not statutory, does not mean the employer may not safely terminate. Examples include overt threats of violence, fraud, and other obvious types of misconduct.
  • Terminate when the misconduct occurs. Avoid post-discovery delay in investigation or termination that would cause the administrative agency (or plaintiff’s counsel) to question the true motivation behind the termination.
  • Protect the workforce. Do not let fear of an employee receiving benefits prevent you from correctly terminating to protect the rest of the workforce.  Similarly, do not allow anger to lead you to protest benefits that are properly allowed.
  • Apply policies equally. Consistency avoids questions regarding favoritism, discrimination, and retaliation.
  • Seek the advice of counsel. Formulating a simple plan of action and reviewing the basis of termination can lead to more successful unemployment protests and avoid headaches associated with discrimination and/or retaliation claims.

Ignorance Can Be Bliss for Employers Facing Retaliation Claims

Contributed by Jon Hoag

The Director for one of ITT Technical Institute’s campuses reported what he believed to be irregularities that violated the Institute’s Participation Agreement with the U.S. Department of Education. He made these reports to his direct supervisor and the Director of Compliance. At approximately the same time, this Director’s campus came under scrutiny because it received low scores during an internal audit. In addition, several complaints were made about the Director’s conduct and management style.

Several ITT Vice-Presidents and the CEO discussed the Director’s performance and decided to terminate the Director’s employment.  The Director sued alleging that he was terminated in retaliation for engaging in conduct covered by the False Claims Act.  The Seventh Circuit assumed that the Director’s reports of irregularities were covered by the False Claims Act, but ruled that his retaliation claim still failed because he could not prove that he was terminated because of making reports under the False Claims Act.

The Seventh Circuit reiterated that in retaliation cases the decision-makers must have knowledge of the employee engaging in the protected activity in order for the employee to prove the termination was caused by engaging in protected activity.  The evidence showed that the decision-makers were never informed about the Director’s complaints, nor did they otherwise have any knowledge of the Director engaging in protected activity.  The Court refused to impute knowledge of protected activity merely because lower level supervisors in the organization had knowledge of such conduct.

Inasmuch as retaliation cases are on the rise, employers might be well served by keeping the decision-makers “in the dark” about certain types of protected activity.  There are obvious practical limitations with this type of strategy, but employers should certainly balance the pros and cons of how information about protected activity is disseminated.

“Honest Suspicion” Continues to Defeat FMLA Claims and Reminds Employers – I DID IT – Investigate, Document, Interview, Document, Investigate, Terminate

Contributed by Brandon Anderson

The U.S. Court of Appeals for the Seventh Circuit has again upheld that an employer can lawfully terminate an employee based on an “honest suspicion” that the employee is abusing FMLA leave.

In Scruggs v. Carrier Corp., the defendant-employer set out to curtail employees’ abuse of company leave policies including FMLA leave. In addition to certain administrative changes, the employer hired a private investigator to follow certain employees that the employer believed to be abusing FMLA leave. 

The plaintiff-employee in the case had been approved for intermittent FMLA leave to take his mother, who is in a nursing home, to and from medical appointments. The employer’s investigator conducted surveillance of the employee on three occasions.  The first two occasions were unremarkable. On the third occasion, however, the investigator conducted video surveillance from approximately 8:00 a.m. – 4:30 p.m. and never saw the employee or the employee’s car leave his property.  The investigator presented his findings to the employer in a documented report.

When the employer later interviewed the employee and allowed him an opportunity to explain his absence, the employee stated that he did not recall the specifics, but was certain he was assisting his mother and that he did not abuse his leave. The employer documented the interview and continued its investigation.

During the investigation process, the employee provided the employer with documentation from the nursing home and several notes from his mother’s doctor. The documentation indicated that the employee may have brought his mother to the doctor’s office, but there were inconsistencies in the documentation and the mother was not actually seen by the doctor on the day in question. The employer also noticed inconsistencies in the documentation with regard to prior alleged FMLA absences.  After considering all of this evidence, the employer terminated the employee for abusing his FMLA leave.

The employee filed suit, but the trial court ruled that while there was a question of fact as to whether the employee used his FMLA leave on the day in question, it was undisputed that the employer had an “honest suspicion” that the employee misused his leave, and the honest suspicion was enough to defeat the employee’s claims of FMLA interference and retaliation. On appeal, the Seventh Circuit upheld the trial court’s decision on the basis that the video surveillance, the employee’s inability to recall the specifics regarding the day in question, and the inconsistent documentation was enough to create an honest suspicion that would defeat any FMLA claim. 

Regardless of the facts, an “honest suspicion” of FMLA abuse can be legal grounds for terminating an employee without violating the employee’s FMLA rights.  This decision should not be taken as a mandate for dismissing employees who are believed to be abusing FMLA leave.  Rather, it is a reminder that a properly handled, well-documented investigation that gives an employee an opportunity to explain his or her actions and the employee’s explanation itself is investigated before the decision to terminate is a “best practice” that will best protect an employer from potential litigation.

Don’t Set Up Employee to Fail: Internal Email Precludes Summary Judgment for Employer in Age Discrimination Case

Contributed by Terry Fox

Employers are frequently faced with challenging terminations, often because they perceive a threat of litigation from the terminated employee.  Supervisors in these situations normally interact closely with human resources professionals.  In these instances, email communication should be closely monitored so as not to raise an inference of improper focus on the employee. 

In Phillips v. StellarOne Bank, Ca.No. 7:11-cv-oo440 (7/16/12 W.D. Va.), the human resources professional involved did not pay close attention to her choice of words.  As a result, the employer was denied early exit from the federal age discrimination and FMLA lawsuit, instead facing a jury trial.  In this case, a 51-year-old employee, Phillips, fell out of favor with his supervisor, apparently based on performance issues.  His supervisor gave him a negative performance evaluation in 2009 and put him on an improvement plan. 

Phillips’ supervisor vetted the proposed performance improvement plan with the company’s human resources department.  The response was transmitted via an email that became central to the lawsuit.  The email stated:

“There is a lot of room for him [Phillips] to “trip up” after this warning considering all the areas where he is below expectation and the magnitude of improvement needed.  I recommend that you consider how strict you are going to be on this (i.e., zero tolerance the next time he does not provide a timely report) and communicate accordingly so that he knows this is a true warning – and that his job is truly on the line.”

The author of this email testified that she assumed “trip up” meant setting performance goals so that Phillips couldn’t meet them.  The court found that a jury could conclude that this email, alone or with other evidence, proved the employee was meeting his employer’s legitimate expectation and that age and/or scheduled FMLA leave was the true reason for the termination.

While certainly no employee should be set up to fail, in challenging terminations where litigation is a strong likelihood, employers may want to consult competent counsel to vett the many issues involved.